Toplodge Nominees Pty Ltd v Sandgate Corporation Pty Ltd
[1999] WASC 236
TOPLODGE NOMINEES PTY LTD -v- SANDGATE CORPORATION PTY LTD & ORS [1999] WASC 236
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 236 | |
| Case No: | CIV:1497/1999 | 15 NOVEMBER 1999 | |
| Coram: | MASTER SANDERSON | 2/12/99 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | TOPLODGE NOMINEES PTY LTD (ACN 078 664 123) SANDGATE CORPORATION PTY LTD (ACN 079 140 613) ORD RIVER LAND CORPORATION PTY LTD (ACN 080 213 476) ANTONIUS JACOBUS MARIA LAUWERS BRUCE GRAEME GRUBB ROWENA NOMINEES PTY LTD (IN LIQ) (ACN 008 818 273) GRAEME CLIFFORD GRUBB |
Catchwords: | Summary judgment Judgment sought on part of claim Turns on its own facts |
Legislation: | Nil |
Case References: | Lill v Merchant Capital (WA) Ltd (1966) 15 WAR 536 ASC v Melbourne Asset Nominees Pty Ltd (1994) 49 FCR 334 Re Australian Home Finance Pty Ltd (In Liq) [1956] VLR 1 Avco Financial Services Ltd v White [1977] VR 561 Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 Custom Credit Corporation Limited v Ravi (1992) 8 WAR 42 Re Kayford Ltd [1975] 1 WLR 279 Kitay v Strathfield Holdings Pty Ltd, unreported; SCt of WA (Parker J); Library No 980149; 31 March 1998 Re Miles (1988) 85 ALR 216 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Porter v McDonald [1984] WAR 271 Simpson v Clifford, unreported; SCt of WA (Master Sanderson); Library No 980641; 4 November 1998 Swiss Bank v Lloyds Bank [1982] AC 584 Theseus Exploration NL v Foyster (1972) 126 CLR 507 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
SANDGATE CORPORATION PTY LTD (ACN 079 140 613)
First Defendant
ORD RIVER LAND CORPORATION PTY LTD (ACN 080 213 476)
Second Defendant
ANTONIUS JACOBUS MARIA LAUWERS
Third Defendant
BRUCE GRAEME GRUBB
Fourth Defendant
ROWENA NOMINEES PTY LTD (IN LIQ) (ACN 008 818 273)
Fifth Defendant
GRAEME CLIFFORD GRUBB
Sixth Defendant
(Page 2)
Catchwords:
Summary judgment - Judgment sought on part of claim - Turns on its own facts
Legislation:
Nil
Result:
Application dismissed
Representation:
Counsel:
Plaintiff : Mr I A Morison
First Defendant : No appearance
Second Defendant : Mr M H Zilko
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Solicitors:
Plaintiff : Hammond King Touyz
First Defendant : No appearance
Second Defendant : Huston Partners
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Case(s) referred to in judgment(s):
Lill v Merchant Capital (WA) Ltd (1966) 15 WAR 536
(Page 3)
Case(s) also cited:
ASC v Melbourne Asset Nominees Pty Ltd (1994) 49 FCR 334
Re Australian Home Finance Pty Ltd (In Liq) [1956] VLR 1
Avco Financial Services Ltd v White [1977] VR 561
Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567
Custom Credit Corporation Limited v Ravi (1992) 8 WAR 42
Re Kayford Ltd [1975] 1 WLR 279
Kitay v Strathfield Holdings Pty Ltd, unreported; SCt of WA (Parker J); Library No 980149; 31 March 1998
Re Miles (1988) 85 ALR 216
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
Porter v McDonald [1984] WAR 271
Simpson v Clifford, unreported; SCt of WA (Master Sanderson); Library No 980641; 4 November 1998
Swiss Bank v Lloyds Bank [1982] AC 584
Theseus Exploration NL v Foyster (1972) 126 CLR 507
(Page 4)
1 MASTER SANDERSON: This is the plaintiff's application for summary judgment on part of its claim against the second defendant. Prior to the application being heard the plaintiff sought to amend its statement of claim in terms of an amended minute of re-amended statement of claim, a copy of which was provided to the court by counsel. I granted leave to amend in terms of the amended minute. However, due to the late amendment of the statement of claim, no affidavit was available verifying the latest version of the document. That meant that the summary judgment application did not comply strictly with the terms of O 14 r 1. However, the failure to comply strictly with the order may not have been fatal to the plaintiff's application: see Lill v Merchant Capital (WA) Ltd (1966) 15 WAR 536. In any event, given the conclusion I have reached in relation to this application, it is not necessary for me to express a concluded view on the consequences of failure to comply strictly with O 14.
2 In relation to the application for an extension of time within which to bring the application, I am satisfied that time should be extended. Essentially, the plaintiff argued that it had difficulty obtaining documents essential to the application. While the explanation for the delay is not detailed, I am prepared to accept that in circumstances where crucial documents are not easily obtained an extension of time is justified. I would therefore grant leave to bring the application out of time.
3 The claim brought against the second defendant is for the sum of $436,000. In the statement of claim the cause of action alleged by the plaintiff against the second defendant is put on a number of different grounds. However, for the purposes of the summary judgment application, the plaintiff alleged that the sum claimed was the plaintiffs and that it was had and received by the second defendants. The plaintiff claims it is entitled to the return of its funds.
4 For the purposes of the application it is unnecessary for me to go into detail as to the facts of the case. It is sufficient if I say that the sixth defendant is a finance broker who arranged for funds to be invested through the fifth defendant. The plaintiff had available the sum of $800,000 and it sought to invest these funds with the assistance of the fifth and sixth defendant. It is the plaintiff's case that part of the $800,000 it invested, being the sum of $436,000 went to the second defendant. The plaintiff says that the fifth and sixth defendants had no interest in any part of the $800,000 and acted only as trustees. It is submitted that the evidence shows the second defendant received the plaintiff's funds and the
(Page 5)
- second defendant is now liable to make repayment of those funds. It is to be noted that no evidence was led on behalf of the second defendant.
5 The difficulty with the plaintiff's claim is establishing precisely what happened to the funds it deposited with the fifth and sixth defendants and establishing whether or not the funds received by the second defendant were in fact the plaintiff's funds. In support of the application, the plaintiff filed an affidavit of Colin Touyz sworn 14 October 1999. Appearing as Annexure "CT2" to that affidavit is a statement of account. Although it is not specified on the account documents themselves, there is no dispute that the records are of the trust account held by the fifth defendant. The account shows that on 9 December 1998 the plaintiff lodged into the fifth defendant's trust account an amount of $800,000. At the time this deposit was made the fifth defendant's trust account was in credit in an amount of $57,594.26. On the following day a number of cheques were drawn on the account. One was for $384,850.80 and a second was for $37,554.20. The cheque for the larger of these two amounts was made payable to D R McLeod. The cheque for the lesser amount was made payable to N J & P A Buchanan. Both were part payments for the purchase of land by the second defendant. On 11 December a cheque for $13,595 was drawn on the same account. This was for the payment of stamp duty on the purchase of land by the second defendant. Thus, it is said by the plaintiff, that $436,000 being part of the $800,000 deposited by the plaintiff in the fifth defendant's trust account was paid out to the second defendant and can now be recovered.
6 However there is a difficulty. The account shows that the cheque for $384,850.80 was drawn against the trust account on 10 December 1998. In other words, the account shows funds actually being removed from the account on that date. The balance of the account was reduced accordingly. Thereafter, there are a series of transactions all of which are said to have taken place on 10 December 1998 which eventually led to the trust account being in debit in an amount of $3,637.07. Then, on 11 December 1998, an amount of $384,850.80 is credited to the trust account. Under the heading "Particulars" on the statement there are the words: "CHQ RETURNED UNPAID". It is somewhat difficult to ascertain just what occurred. In all probability the cheque made payable to D R McLeod was presented to the bank on 10 December 1998. When the cheque was processed at the close of trading it was found that if payment was made the trust account would be in debit. Therefore, the following day the cheque was returned and the trust account was credited accordingly. However, it must be said that this analysis of the position is
(Page 6)
- speculation. There is no evidence presented by the plaintiff as to precisely what occurred and why the account entries appear as they do.
7 After the amount of $384,850 was credited to the trust account certain further withdrawals were made on 11 December, 14 December, 15 December, 16 December and 17 December. Then, on 17 December, a bank cheque in the sum of $384,850.80 was drawn on the trust account made payable to D R McLeod. The question is whether the money paid out to the second defendant, pursuant to that bank cheque, can be identified as the plaintiff's funds.
8 In my view it is at least arguable that the funds cannot be so identified. For instance, at one point on 14 December the balance in the fifth defendant's trust account was $338,371. This was after the $384,850.80 amount had been credited. In other words, some of the funds which the plaintiff had lodged with the fifth defendant had been used for purposes other than payment to the second defendant. In the circumstances, on a summary judgment application, I could not be satisfied that there was complete identity between the amount paid into the fifth defendant's trust account by the plaintiff and the amount paid out by the fifth defendant for and on behalf of the second defendant. On that basis, the second defendant should have unconditional leave to defend the claim. However, there are a number of matters raised by the plaintiff which I should deal with, if only briefly.
9 As I indicated above, three cheques were drawn on the fifth defendant's trust account. I have dealt with the largest of the three amounts. Both the cheque for $37,554.20 drawn on 10 December and the cheque for $13,595 were met when presented. However, with respect to both of these amounts, it is not clear from the statement of account whether or not the amounts paid out were part of the $800,000 paid into the trust account by the plaintiff. The account records show that on 10 December, after payment of $384,850.80 had been debited against the account, the credit balance was $57,558.23. That is almost identical to the amount that was in the account prior to the payment in of the $800,000 by the plaintiff. It is at least arguable then that when the amount of $37,554.20 was paid out it was paid out of money that was in the account prior to the deposit of the $800,000 by the plaintiff. In other words, the payment may have been made from money other than funds deposited by the plaintiff. Of course I express no concluded opinion on this question, but it is a point which is at least arguable. The reasoning in relation to the $13,595 is similar. By the time that cheque was presented the cheque for $384,850.80 had been returned unpaid. However, certain other amounts
(Page 7)
- had been drawn against the account so that by the time the cheque for $13,595 was presented the account balance was $367,336.91. It is at least arguable that there was no identity between the amount standing in the trust account on 11 December and the amount that had been paid in by the plaintiff. It is therefore inappropriate to grant summary judgment in relation to these two lesser sums.
10 Counsel for the plaintiff submitted that if judgment was not entered for the plaintiff then I ought order that the $436,000 be paid by the second defendant to the liquidator of the fifth defendant. I doubt that I have power to make such an order on a summary judgment application. The power that I do have is to order a payment into court on the basis that the defence is shadowy. However, in the circumstances of this case, I am satisfied that the defence is at least arguable and that there is no basis for a grant of anything other than unconditional leave to defend.
11 Finally, it was suggested that there should be judgment for the plaintiff for an amount of $436,000 less $57,594, the amount standing in the fifth defendant's trust account when the plaintiff paid $800,000 into the account. It was said that this course would ensure that no party who had a credit balance as at the date of payment into the trust account of $800,000 by the plaintiff would suffer loss. I have some difficulty following this submission. In any event, it seems to me to ignore the continuous trading which took place in the trust account. The difficulty with the plaintiff's claim is establishing that the amount paid to the second defendant came directly from the plaintiff. That difficulty would not be overcome by giving judgment as suggested by the plaintiff.
12 In all the circumstances, I am satisfied there ought be unconditional leave to defend granted to the second defendant. I will hear the parties as to costs.
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